We don’t have to guess about whether Orange County law-enforcement officials violated ethical obligations in major felony cases and, with hopes of covering up those failures, lied under oath or became infected with sudden, convenient memory losses when their rear ends plopped down on the witness stand.
We know brazen cheating happened, partly because, since March, Superior Court Judge Thomas M. Goethals ordered dozens of hours of testimony by sheriff’s deputies, police officers and prosecutors. He also acknowledged the ugly truth in an Aug. 4 ruling that ended special evidentiary hearings. “Many of the witnesses who testified during the course of this hearing were credibility-challenged,” Goethals wrote in his 12-page opinion tied to the ongoing People v. Scott Dekraai, the 2011 Seal Beach salon shooter. “Others undoubtedly lied.”
With those two simple but alarming sentences, the judge did what has proved so difficult—almost impossible, really—for so many members of Orange County’s judiciary. He acknowledged law-enforcement corruption, a fitting term given the implications of powerful government agents betraying oaths to tell the truth. He also declared that the “serious” misconduct “merits a significant sanction.”
Goethals had set the stage for a historic ruling to confront bad actors living well at the public trough, robbing taxpayers of honest services and believing they could repeatedly lie in open court without consequential, career-damaging rebuke. If government officials can say anything that suits their fancy in pursuit of winning criminal convictions, our court system is a sham or, as Goethals calls it, “a house of cards.” Surely, a judge—who has no greater task than to protect the integrity of the criminal-justice system—would at least put Judge Judy-style fear into law-enforcement liars.
But, incredibly, Goethals wasn’t up to even TV judge standards. Judge Judy famously barked, “Don’t pee on my leg and tell me it’s raining.” Judge Tommy might as well amend the declaration to “Go ahead, officer, pee on my leg, assure me under oath it’s raining and watch me let you get away with it.”
Move over, Conan the Barbarian. Goethals is now the executive producer of one of the biggest flops in Southern California legal history. Given the opportunity to send an unmistakable signal that lies won’t be tolerated from police and prosecutors, he did nothing.
Well, that’s not exactly right. He pretended to do something. Assistant Public Defender Scott Sanders, Dekraai’s legal counsel, argued the appropriate penalty for the government’s misconduct was to recuse the Orange County district attorney’s office (OCDA) from the case in exchange for the California Attorney General’s office and to ban the death penalty as an option in favor of a 400-year-plus sentence without the possibility for parole. The request wasn’t unreasonable. The special evidentiary hearings did nothing but bolster Sanders’ claims that prosecutors systematically hid exculpatory evidence and operated an illegal jailhouse-informant program, points originally hailed by OCDA officials as a conspiratorial nut fantasy.
Instead of rendering meaningful punishment, however, Goethals chickened out. He banned OCDA from using illegally obtained, surreptitiously recorded statements against Dekraai during upcoming death-penalty hearings, a sanction better described as a tender caress than a wrist slap. Why? Because 104 days earlier, OCDA officials conceded on the record they would not try to introduce those statements.
In response, Sanders was diplomatic, calling the ruling “disappointing.” Others in the defense community described themselves as angry. Some of my readers unsurprisingly told me the ruling disgusted them.
The outrage-empty ruling contains additional, unforced errors. Though Goethals declared that cops and prosecutors lied or robbed him of complete answers by feigning memory losses, he protected the offenders by not naming the liars or identifying their lies in his ruling. The lack of specificity has consequences.
For example, Goethals’ opinion also slammed “former prosecutors” for lying during the hearings. Intended or not, that identification includes Judge Terri Flynn-Peister. OCDA and OCSD fibbers—when their memories fell suspiciously in place as scapegoats were needed to divert Sanders—asserted Flynn-Peister was the person who ordered evidence hidden while she served as an assistant United States attorney in Santa Ana and helped run a joint federal/state organized-crime task force.
But Goethals also chose to give OCDA, his former employer, the benefit of the doubt as much as possible by ignoring reality.
Two-faced Mexican Mafia hoodlum Fernando Perez, a prized, veteran jailhouse informant placed next to Dekraai’s cell to learn defense trial strategies? A coincidence.
Potential exculpatory evidence—17,000 pages!—not turned over to Sanders for years? Accidental failures, despite prosecutors acknowledging in writing their discovery games were intentional based on a belief the defense had no damn business seeing the information.
Falsified law-enforcement declarations and dubious oral arguments? Not intentional moves to mask cheating, but rather, according to the judge, “the product of woefully inadequate legal training, along with a lack of professional energy and strategic imagination.”
See? Prosecutors stumbled absentmindedly into unethical moves that in all instances just happened to aid their pursuit of putting Dekraai on Death Row. What tremendous luck.
No worries, though. Goethals is willing to hurl these words at OCDA: “The events associated with the current hearing do not constitute the district attorney’s finest hour. Nonetheless, after an exhaustive evaluation of the totality of this record, the court finds that the district attorney’s well-documented failures in this case, although disappointing, even disheartening to any interested member of this community, were negligent rather than malicious.”
You understand, right? Law-enforcement officials repeatedly told lies, but those lies weren’t uttered to be “deliberately harmful”—the short definition of malicious. Goethals would have us believe the dishonesty was mistakenly harmful to defendants.
Over the years, I’ve witnessed police and deputies commit perjury on the witness stand and get caught by on-the-ball defense lawyers, only to watch judges and prosecutors look the other way. Last year, a deputy DA told me he regretted outing a female cop for fabricating a police report because her department and his own colleagues harassed him for not being a team player. That would be Team Us, not Team Justice.
Orange County has plenty of outstanding law-enforcement officials, but tolerance of government deceit tells you what you need to know about flimsy ethical standards too often in effect here. There was a point during the evidentiary hearings when it seemed as if Goethals might help usher in a new era of accountability. It’s obvious now he doesn’t have the courage to be anything but one of the good old boys who winks every time a cop enters his courtroom.
CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; won inclusion in Jeffrey Toobin’s The Best American Crime Reporting for his coverage of a white supremacist’s senseless murder of a beloved Vietnamese refugee; launched multi-year probes that resulted in the FBI arrests and convictions of the top three ranking members of the Orange County Sheriff’s Department; and gained praise from New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.